Environment Protection Authority v Le Dome Pty Limited

Land and Environment Court (NSW)|2002-06-21|Before: Bignold J, Mr P

CITATION : Environment Protection Authority v Le Dome Pty Limited [2002] NSWLEC 167 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Le Dome Pty Limited FILE NUMBER(S) : 50143 of 2001 CORAM: Bignold J KEY ISSUES: Environmental Offences :- Use of registered pesticide contrary to label-vicarious liability for act of employee-mitigating circumstances LEGISLATION CITED: Pesticides Act 1999, s 15 Crimes (Sentencing Procedure) Act 1999, s 10 Cabonne Shire Council v Environment Protection (2001) 115 LGERA 304; CASES CITED: R v Ingrassia (1997) 41 NSWLR 447 ; Thorneloe v Filipowski (2001) 116 LGERA 56; Walden v Hensler (1987) 163 CLR 561 DATES OF HEARING: 21 June 2002 DATE OF JUDGMENT: 09/20/2002

PROSECUTOR: Ms Caruana, Solicitor SOLICITORS Solicitor Environment Protection Authority

IN THE LAND AND Matter No. 50143 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 20 September 2002

The Defendant has pleaded guilty to an offence against Pesticides Act 1999, s 15(1) in that on 19 December 2000 at Woolloomooloo, it used a registered pesticide in contravention of an instruction on an approved label for the pesticide without being authorised to do so by a permit.

The charge adopts the language of s 15(1) which provides as follows: A person must not use a registered pesticide in contravention of any instruction on an approved label for the pesticide unless the person: (a) is authorised to do so by a permit, and (b) complies with the permit. Maximum penalty: · $120,000 in the case of a corporation, or · $60,00 in the case of an individual

The terms "use a pesticide", "registered pesticide", "instruction", "approved label", a "permit" are defined by the Pesticides Act, s 4(1) and the term "pesticide" is defined by s 5. Many of those definitions refer to or adopt relevant provisions of the "Agvet Code" which is defined by s 4(1) as meaning "the provisions applying because of the Agriculture and Veterinary Chemicals (New South Wales) Act 1994, s 5". That section enacts that the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth as in force for the time being: (a) applies as a law of New South Wales …………… …………….

Section 4 of the Commonwealth Act enacts the Agricultural and Veterinary Chemicals Code which is set out in the Schedule to the Act and is a detailed Code containing some 184 sections, the express object of which as stated in Section 1, is: to make provision for "(a) the evaluation, approval and control of the supply of, active constituents for proposed or existing agricultural chemical products or veterinary chemical products; and (b) the evaluation, registration and control or the manufacture and supply of agricultural chemical products and veterinary chemical products.

Sections 4 and 5 of the Code define respectively the terms "agricultural chemical product" and "veterinary chemical product".

These definitions are the adopted meanings of the term "pesticide" in the Pesticides Act - vide s 5. For the purpose of the present case, it is only necessary to note that the definition of "agricultural chemical product" includes - a substance or mixture of substances that is represented, imported, manufactured, supplied or used as a means of directly or indirectly (a) destroying, stupefying, repelling, inhibiting the feeding of, or promoting infestation by or attacks of, any pest in relation to a plant, place or thing.

Section 3 of the Code includes among many defined terms the following definition: pest means: (a) in relation to an animal plant or thing---any animal, plant or other biological entity that injuriously affects the physical condition, worth or utility of the first-mentioned animal or plant or of that thing, or (b) in relation to a place---any animal, plant or other biological entity that injuriously affects the use or enjoyment of that place.

Again, for the purposes of the present case, it is sufficient to refer to the "Note" to Part 1 of the Pesticides Act which explains the relationship between the Act and the "Agvet Code" in the following terms: The Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth (the Agvet Code ) is the basis of a uniform legislative scheme for the approval and registration of agricultural chemical products (eg pesticides) and veterinary chemical products. Section 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 provides that the Agvet Code applies as law of New South Wales. The Agvet Code controls the manufacture and supply (eg sale) of agricultural and veterinary chemical products. The control of the use of those chemical products (described in this Act as pesticides) is generally a matter for the States. This Act provides the basis for the control of the use of pesticides in New South Wales. This Act should be read in conjunction with the Agvet Code (particularly the definitions in that Code).

According to the Summons, the relevant particulars of the charge are as follows: (a) Registered Pesticide:

Re-entry to treated areas: Allow treated areas to completely dry (normally 3-4 hours) and ventilate buildings before reoccupying.

In applying the pesticide at premises at 153 Forbes Street, Woolloomooloo, Guisepe Garafano, an employee of the Defendant: 1. Failed to ensure that all treated areas were unoccupied at the time of the application; and/or in the alternative, 2. Failed to allow the treated areas to completely dry before allowing them to be occupied and/or reoccupied; and/or in the alternative, 3. Failed to ventilate the building before allowing it to be occupied and/or reoccupied.

The only issue for decision by the Court is sentence, in respect of which the Prosecutor submits that in the circumstances of this case presently to be recited, the Court should record a conviction and impose an appropriate penalty whereas the principal Defence submission is that the Court should apply in favour of the Defendant the discretion conferred by s 10 of the Crimes (Sentencing Procedure) Act 1999 by not recording a conviction for the admitted offence. Alternatively, the Defence submission is that the admitted offence should be regarded as involving very low criminal culpability on the part of the Defendant.

It should be noted that a charge of the same offence against Mr Garafano, the Defendant's casual employee, was at the commencement of the trial of the present charge by consent dismissed with no order as to costs (vide Proceedings 50144 of 2001). B. THE RELEVANT FACTS

The relevant facts are stated in the Statement of Agreed Facts (Exhibit 1).

Additionally, the Defendant has without objection from the Prosecutor, read three affidavits or statements which are relied upon by way of mitigation of the offence.

The following narrative summarising the relevant facts is derived from the Statement of Agreed Facts.

The Defendant owns premises known as No 153 Forbes Street Woolloomooloo which it has operated as a backpacker or hostel accommodation since 1982 (the premises). The premises comprise a residential terrace building and have an overall capacity to accommodate 80 persons in some 22 rooms.

Most occupants of the premises are overseas or interstate tourists.

The Defendant is a family company of Mr and Mrs Peter Pullen who are co-directors. It owns and operates two other similar hostel premises, one situate in Redfern and the other situate in Katoomba.

At the date of the offence, the Defendant employed two permanent staff and some casual staff. One of the permanent staff was Mr Sam Bekhore who resided at the premises and was the manager of the premises.

One of the casual employees was Guieseppe Garafano who worked part time (less than 10 hours per week) as a general handyman at the Defendant's two Inner City premises. His duties involved general maintenance work, mowing lawns and pest control spraying the premises for cockroaches.

Pest control activity was regularly carried out by the Defendant at its Inner City premises and for some years it had been using the chemical "Dursban" whose only active constituent was ethyl-chlorpyrifos, for which the target pests were cockroaches, termites, spiders, silverfish and ants.

Prior to using "Dursban" (which had been recommended by a retailer of domestic chemicals) the Defendant had used "Baygon" liquid spray for pest control for many years.

For the period of two years preceding the offence, pest control spraying of the premises with Dursban had been only carried out by Mr Garafano on a regular maintenance basis at intervals of 12 weeks. The work would be undertaken on a day when Mr Garafano had nothing else to do and when the Hostel was quieter than usual. The chemical Dursban was mixed at a concentration of 20 ml to 7 litres of water which was a more diluted mixture than the prescribed concentration of 50 ml to 10 litres of water.

The normal procedure adopted for the regular maintenance spraying was for the areas to be sprayed to be vacated at a nominated time between 11.00 am to 1.00 pm, to close off the rooms until 4.00pm and to wear protective clothing in undertaking the spraying.

Mr Garafano had been instructed to follow these procedures. Mr Pullen's initial instructions to Mr Garafano were only to spray empty rooms and that if people were present at the premises to ask them to leave for a couple of hours.

On the day that the offence was committed, Mr Pullen thought that Mr Bekhore would have instructed Mr Garafano concerning the spraying procedures. However, Mr Bekhore, who never himself had read the "Dursban" label nor had undertaken pest control spraying thought that Mr Garafano knew what to do since he had been regularly spraying the premises with Dursban at three monthly intervals for the previous two years.

Notification of occupants at the premises of the Defendant's intention to undertake chemical spraying was sometimes effected by placing a notice to that effect on the notice board at the premises and on other occasions it was not until the appearance of Mr Garafano wearing a mask and carrying the canister of chemical to be sprayed, that residents would become aware of the spraying activity.

On the day that the offence was committed, Mr Garafano commenced spraying the premises at 11.00 am. He sprayed areas of the premises that were occupied by persons, including the room occupied by Mr Vercoe who enquired of Mr Garafano whether it was safe for him to remain in the room while Mr Garafano was spraying and was informed that it was "fine". While spraying in that room, Mr Vercoe observed that Mr Garafano was not wearing gloves or protective clothing. While the spraying continued, Mr Vercoe left the room and returned 15 minutes later after Mr Garafano had left the room. He smelt a strong chemical odour in the room and noticed two plates on the floor which appeared to be filled with chemical, some of which dribbled over his hand when he picked it up. He then washed the chemical off his hand.

At 2.30 pm, the automatic fire alarm installed in the premises was activated for reasons unknown. This resulted in the attendance at the premises of the Fire Brigade from the Darlinghurst Fire Station 10 minutes later.

The Fire Officers who attended did not detect any fire but detected a pungent chemical odour in the air. Upon attending the room in which the automatic fire alarm had been activated, the Fire Officer smelt the same pungent chemical odour. He also observed four persons occupying the room.

The Fire Officer later observed Mr Garafano spraying the carpet and skirting boards on the ground floor. He was not wearing any form of protective equipment. A number of persons were present on the ground floor during the spraying operation some of whom were eating and drinking.

After the Fire Officer had spoken to Mr Garafano and read the label on the Dursban Canister he order Mr Garafano to immediately stop spraying and ordered that the premises be immediately evacuated. Some 20 persons were evacuated on those orders and an additional two or three persons were evacuated after the Fire Officer forcibly entered the rooms which they were occupying.

The Fire Officer then sought assistance from HAZMAT and the Ambulance Service who arrived at the premises soon thereafter.

The Fire Officer activated two air pressure ventilation fans to assist the dissipation of the chemical odour in the premises.

The HAZMAT Team leader formed the opinion that the premises should not be re-occupied for a further minimum period of four hours.

Upon the arrival of the Ambulance Service, one of the paramedics invited the 20 or 30 persons now congregated outside the premises to speak with him if they had come into contact with the chemical or were feeling unwell.

Mr Vercoe consulted him telling him of the contact he had had with the chemical. He was advised to attend Hospital as a precautionary exercise.

In the result, six persons were taken to St Vincent's Hospital and some 16 persons were taken to Sydney Hospital.

The persons attending Sydney Hospital removed their clothing (which was sent for dry cleaning) and showered to remove any contaminants. Those persons attending Sydney Hospital returned to the premises after 7.00 pm and those persons who had attended St Vincent's Hospital returned to the premises at 10.00 or 11.00 pm.

The Premises remained vacant until 8.00 pm according to the direction that had been issued by an officer from Workcover who had been called to the premises.

Dursban is a registered pesticide, the approved label for which includes an instruction booklet (attached to the label on the canister) which includes the following instruction: RE-ENTRY TO TREATED AREAS: Allow treated areas to dry completely (normally 3-4 hours) and ventilate buildings before re-occupying.

This instruction was contravened by Mr Garafano when spraying the premises with Dursban on 19 December 2000.

The Defendant is responsible for the contravention being vicariously liable for the acts of its employee, Mr Garafano, who undertook the spraying activity as part of his regular duties as a casual employee.

In undertaking the regular maintenance, pest control spraying Mr Garafano had received initial instructions from Mr Pullen not to spray rooms which were occupied and to advise persons not to re-enter their rooms until 4.00 pm on the day of spraying. This was standing direction which was obviously ignored by Mr Garafano when spraying the premises on 19 December 2000.

There is no evidence as to why the standing instructions were ignored.

There is no evidence that any of the evacuated occupants of the premises who attended hospital following the incident suffered any harm to their health.

The Defendant has recently been served with two Summonses whereby Workcover has laid charges of offences against the Occupational Health and Safety Act 1983 arising from the same incident which is the subject of the present charge.

Since the commission of the admitted offence, the Defendant has arranged for a licensed professional contractor to undertake the regular pest control maintenance at the premises.

The Defendant has never previously been prosecuted for an environmental offence.

The facts in mitigation that emerge from the Defendant's evidence may be summarised as follows.

The Defendant came into existence under a different name in 1936 as a small family restaurant business created by Mr Pullen's father. Mr Pullen is a fully trained chef holding certificates in business management, bar management, advanced waiting, wine appreciation, hotel management, computer tracing and interior decorating and during his career has been the honourable recipient of awards in the hospitality industry.

Following a decline in his health, about 15 years ago, Mr Pullen changed the business focus of the Defendant to the provision and operation of affordable short-term accommodation.

For 40 years of involvement in the family business, neither the Defendant nor its Directors have previously been prosecuted for any offence. Nor had the Defendant ever previously received service of a statutory notice. For 40 years, Mr and Mrs Pullen have held liquor licences without incident in connection with their successively operated business premises known as the "Roxy Café", Brighton-Le Sands, the "Doncaster Theatre Restaurant" Kensington, the "Argle Tavern" the Rocks, "Petes Pull-Inn" Engadine, the "Colonial Inn" Berrima, the "Oyster Shell Restaurant" Blakehurst, "Elizas" Double Bay, "Oskers" Surfers Paradise; and "Forbes Restaurant" Woolloomooloo.

Although the Defendant employs Mr Bekhore as Manager of the premises (where he resides), Mr Pullen is closely involved with the running of the premises.

Since it commenced operating the premises, the Defendant has not experienced any major problem with vermin but cockroaches are the main problem, which is dealt with by regular spraying at three monthly intervals.

Mr Pullen personally undertook the spraying activities at the premises up to 1998 but due to his ill health Mr Garafano, a casual employee, undertook that activity from 1998 onwards.

Mr Pullen had always carried out the spraying in accordance with his understanding of the label directions and he had instructed Mr Garafano to carry out the spraying in accordance with those instructions. Mr Garafano had proved himself to be in Mr Pullen's opinion an honest, diligent and hard working employee who has been employed for the past six years.

Since the premises operate as a business for 365 days each year it is important to conduct the spraying activities in a manner that does not inconvenience the residents of the premises; most of whom usually leave the premises during 11.00 am each day and do not return before 4.00 or 5.00 pm. This is particularly the case in summer when the rooms become warm in the middle of the day and it is uncomfortable to remain indoors. It was during this period that the spraying could generally be undertaken when the rooms would be dried and ventilated (by opening windows) before the return of residents in the evening.

In Mr Pullen's opinion, Mr Garafano is an extremely reliable employee who has performed the spraying activity competently for three years. Mr Pullen has known Mr Garafano personally for 20 years and regards him as a respectable person of high integrity. Although not possessing superior English language skills, Mr Pullen is confident that Mr Garafano could properly communicate with guests when spraying was to be undertaken.

Due to the small size of the hostel, it had not been the practice of the Defendant to issue any formal notification of its intention to undertake spraying. Rather, Mr Garafano was responsible for telling residents that spraying would commence at 11.00 am and that they were not permitted to return to their rooms until 4.00 pm.

On the day that the offence was committed, Mr Pullen was as usual working at the Defendant's other Inner City premises when he received a telephone call from Mr Garafano that the fire alarm had gone off and the Fire Brigade had come and had "evacuated everyone".

Mr Pullen immediately sent Mr Bekhore to the premises. After he spoke to Mr Garafano who told him it was not the spraying that had activated the fire alarm, Mr Bekhore was informed by the Fire Brigade Officer that the building must be evacuated. He was also spoken to by Mr Reynolds, a WorkCover Inspector who informed him that the spraying should not have been undertaken while anyone was in the building and that in future, spraying must be undertaken by professional pest controllers. He issued a written direction to this effect.

According to Mr Bekhore, who has been employed as Manager at the premises since 1996, the Defendant had never previously experienced a problem with pesticidal spraying and no resident had ever complained of any ill effects caused by the use of pesticides.

The Defendant immediately assumed responsibility for the incident as is attested by the fact that it incurred expenses of some $11,000 by paying for the cleaning costs for the clothes of the residents who had been taken to hospital and the cleaning costs of other residents(at the date of the offence there were 70 guests residing at the premises), the hospital expenses, and waived accommodation costs of all 70 guests staying at the premises on the day of the incident.

Relevant to the Defendant's culpability for its vicarious liability for the offence, I quote the following paragraphs from Mr Pullen's affidavit sworn 24 May 2002: 44. Since 19 December 2000, Le Dome has endeavoured to prevent such an incident from re-occurring. The following procedures are now in place to ensure a similar incident will not re-occur:

(a) we now employ a qualified pest control sprayer, Gold Shield Pest Management, to perform all pest control tasks; (b) guests are notified well in advance of potential spraying activities; (c) notices are also placed on the noticeboard in the foyer advising residents of the date and time that spraying is to occur.

Other than the inconvenience caused to the residents, I am aware that Le Dome is responsible for any harm that may been caused from this incident. There was a failure on our behalf to erect suitable warning signs and to ensure that all guests were informed that they were not to return to the hostel for approximately four hours. 46. While I had endeavoured to ensure, we were complying with the instructions in the Dursban booklet, and I thought that our procedures did in fact do this, I now realise that we should have completely vacated the entire building before carrying out any spraying operations. 47. I regret that my incorrect interpretation of the Dursban instructions had the potential to harm residents. I also regret the fact that the Fire Brigade and ambulance service may have been inconvenienced. I am relieved that no harm to any person was caused on 19 December 2000 and no environmental harm was caused.
Once I had been alerted to the fact that my interpretation of one part of the directions on the Dursban label was incorrect, it was quite possible that I could have interpreted other directions incorrectly as well. It has never been my intention to place at risk the residents or employees at any of the accommodation houses operated by Le Dome. As such, regardless of the direction issued by Workcover, I believe that I would have employed a licensed pest controller to carry out spraying at the Forbes Terrace after the incident on 19 December 2000 to reduce this risk. C. COMPETING CASES ON SENTENCE

Initially, the competing submissions on sentence involved only the issue of the amount of the penalty to be imposed upon conviction of the Defendant. On this issue, the Defence submission was that the gravity of the offence was at the "very low end of the scale". The submission continued: Given the costs incurred by the Defendant, the lack of any harm or injury caused, the extreme unlikelihood of any re-offence, the subsequent measures introduced by the Defendant in relation to pesticide application, the lack of any prior criminal record and the fact that the Defendant is a small family business, it is submitted that the appropriate penalty in relation to this offence should have been a penalty notice. The fine payable for a penalty notice for this offence is $800 in the case of a corporation (section 78, Pesticides Act, Schedule 1 of the Pesticides Regulation 1995 ). It is submitted that the appropriate fine in the present circumstances, given the very low criminality of the offence is in the order of the penalty notice fine.

The Prosecutor's competing submission was that a fine of the magnitude of the amount of a relevant penalty infringement notice would be inappropriately low in the present case which should not be regarded as involving only a "minor breach" of the Pesticides Act, s 15(1). Both competing submissions addressed the factors stipulated in the Pesticides Act, s 109(1) which is in the following terms: 1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a) the extent of the injury, damage or harm caused or likely to be caused by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate any such injury, damage or harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) in any case where the defendant is a corporation, the type of corporation concerned (eg whether it is a sole trader or a family-owned business), (g) whether the person who committed the offence complied with any relevant pesticide code of practice

I shall presently consider the application of the statutory factors to the agreed facts of the present case, together with the facts in mitigation relied upon by the Defendant, but it will be necessary to first consider the submission that was ultimately advanced on behalf of the Defendant at the trial, namely that the Defendant should be conditionally or unconditionally discharged without conviction pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10(1). D. THE EXERCISE OF THE COURT'S DISCRETION UNDER THE CRIMES (SENTENCING PROCEDURE) ACT 1999, s 10

Section 10 relevantly provides as follows: 10 (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders:

(a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond.

(2) An order referred to in subsection (1)(b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.

In exercising the discretion conferred by s 10(1), I am required to consider each of the factors enumerated in subsection (3).

In Thorneloe v Filipowski (2001) 116 LGERA 56 the Court of Criminal Appeal gave extensive consideration to the scope of judicial discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10. (It also considered this Court's approach to the exercise of that discretion in respect of environmental offences, noting the fact that the decided cases had consistently declared that the discretion would "rarely" be exercisable in respect of those offences.)

The Chief Justice discussed the wide ranging discretion in the following passages at pp 79 and 80: The discretion conferred by s10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is "proper" for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s10. As Windeyer J said in the context of concluding that the then equivalent of s10 in South Australia applies to the offence there under consideration:

The whole history of criminal justice has shown that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. (Cobiac v Liddy (1969) 119 CLR 257 at 269).

The last sentence of this passage was quoted with approval by Gleeson CJ when he said in R v Ingrassia (1997) 41 NSWLR 447 at 449:

The essence of s556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps 'without proceeding to conviction'. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.

Notwithstanding, the width of the ameliorative purpose of s10, it does, in terms, direct attention to "the relevant charge". The scope and purpose of s10 will, to some extent at least, vary from one offence to another. I have not found it easy to determine whether a factor which is not relevant on sentencing for the charge, can nevertheless be a "proper" matter to be considered when exercising the discretion under s10. On balance, I have concluded that s10 does have a scope and purpose which extends beyond the elements of the offence of the "relevant charge". I refer in particular to the effects of the act of recording a conviction, to which Gleeson CJ referred in Ingrassia.

My consideration of the factors enumerated in s 10(3) in their application to the facts of the present case may be summarised as follows:

This factor operates strongly in favour of the Defendant inasmuch as prior to this offence, it has had a long and unblemished history extending back nearly 80 years, initially in the restaurant and hospitality industry and in the past 20 years in the low cost backpackers or hostel accommodation industry. Both the Defendant, in its corporate identity and Mr Pullen (whose father crated the Company in 1936) in his personal capacity enjoy an outstanding professional reputation.

Part 2 of the Pesticides Act creates a number of offences in respect of the use of pesticides.

Division 1 creates offences for wilful or negligent use of pesticides prescribing a maximum penalty of $250,000 and $120,000 for offences committed by a corporation or an individual respectively.

Division 2 creates offences in respect of the misuse of pesticides prescribing a maximum penalty of $120,000 and $60,000 for offences committed by a corporation or an individual respectively.

Division 3 creates a number of offences relating to the control of pesticides, including the offence created by s 15(1) with which the Defendant is charged. Such offences comprise possessing an unregistered pesticide (s 12); using an unregistered pesticide (s 13); requiring a user of a pesticide to first read an approved label (s 14); using a registered pesticide contrary to approved label (s 15); keeping pesticides in containers without an approved label (s 16); and having or possessing a restricted pesticide (s 17).

All of the Division 3 offences (except for the offence created by s 16) prescribe a maximum penalty of $120,000 and $60,000 for offences committed by a corporation or individual respectively.

The offence as created by s 15(1) cannot, in my opinion, be regarded as a "trivial" offence in circumstances where the prescribed maximum penalty is $120,000. However, no doubt there are varying kinds of instructions on an approved label and no doubt it is possible that some may be more fundamental or serious than others.

A proper understanding of the purpose of the creating of offences against the Act is assisted by consideration of the express objects of the Act as stated in s 3 namely: (a) to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991 , (b) to minimise risks to human health, the environment, property and trade, (c) to promote collaborative and integrated policies in relation to the use of pesticides, (d) to establish a legislative framework to regulate the use of pesticides.

In my judgment, the offence created by the Pesticides Act, s 15 has an important function in the overall framework of the Act regulating the use of pesticides, which includes the giving of instructions by way of approved labels that are fixed on supplies of registered pesticides that are obtainable for use by any person. Clearly obedience to the label instructions by persons using registered pesticides is an important, if not imperative, feature of the system of regulated use of pesticides for the purpose of attaining the express objects of the Act.

In the circumstances, I do not regard the offence charged against the Defendant as being trivial in nature.

Insofar as factor (b) also involves a consideration of the objective and subjective factors relevant to the particular circumstances of this case, I would not regard the failure by Mr Garafano to obey the label instructions as a trivial matter when the health of a number of guests residing at the premises was at the very least put at risk by virtue of their exposure to the pesticide spray without being warned by Mr Garafano of the danger of being present at the premises while he was spraying.

In the present case, of course, the Defendant is not Mr Garafano. Rather, it is the employer of Mr Garafano which is vicariously responsible for his acts committing the offence.

Here is must be at once recognised that the culpability of the Defendant in the commission of the offence is not nearly as grave or blatant as the culpability of Mr Garafano, who committed the offence in obvious disobedience of standing instructions given in former times by the Defendant.

There is no evidence that Mr Garafano who had performed the same task at regular three monthly intervals for two years prior to the commission of the offence, undertook those earlier tasks in a manner that disobeyed his employer's standing instructions. Nor is there any explanation in the evidence as to whey Mr Garafano so blatantly ignored those standing instructions on the occasion he committed the offence. I do accept Mr Pullen's evidence that Mr Garafano was regarded as a responsible person who competently went about his home handyman duties as a casual employee of the Defendant.

However, although it must be accepted that for unknown reasons Mr Garafano on the day in question blatantly ignored standing instructions, the admitted facts of the present case do not justify a conclusion that the Defendant was entirely lacking in culpability in incurring vicarious liability for its employee's actions which involved the most blatant violations on his part of standing instructions. This is because of the admissions contained in Mr Pullen's affidavit evidence that I have earlier fully recited.

Doubtless, it was because of these very candid admissions that the Defence written submissions properly conceded that the procedures adopted by the Defendant (and so passed on to Mr Garafano) were deficient inasmuch as (i) the entire premises, whilst pesticidal spraying was being undertaken, should have been vacated and (ii) more adequate notice of intended spraying should have been given to residents.

The Defence submission also conceded that it was Mr Garafano's practice to leave the premises following the spraying activity, leaving open the possibility of resident guests returning to their rooms before the three to four hour drying period had elapsed.

For all of these reasons, I do not find the offence charged to be a trivial offence either as a general proposition in terms of the place of s 15 in the overall scheme of the Pesticides Act or in the particular circumstances of the Defendant's culpability in the commission of the admitted offence.

The extenuating circumstances that can be relied upon by the Defendant are the fact that its casual employee Mr Garafano who was experienced in the task of pesticidally spraying the premises for reasons unknown blatantly ignored standing instructions given him by the Defendant in the performance of that task. Another relevant extenuating circumstance is Mr Pullen's honestly mistaken interpretation of what was required by the relevant instructions restricting re-entry to treated premises.

However, for the reasons I have already given in my consideration of factor (b) it cannot be concluded that these extenuating circumstances wholly expunge the Defendant's culpability in the present case. That culpability, as I have held, includes inadequate procedures concerning notice being given to the resident guests of the intended spraying activity and inadequate enforcement of the three to four hours drying period before human re-entry to the treated premises.

Relevant here are the following mitigating factors:

(i) this is the first offence charged against the Defendant in its corporate capacity or against Mr Pullen, his wife and father in a continuous participation for nearly 80 years in the restaurant/hospitality industries and for nearly the past 20 years in the low cost hostel accommodation industry;

(ii) the Defendant entered a plea of guilty at the earliest opportunity;

(iii) the offence was committed by an experienced employee who for reasons unknown blatantly ignored standing instructions in the carrying out of the spraying activity;

(iv) since the incident, the Defendant has engaged the services of a licensed professional pest controller and does not itself undertake the task and hence there is no prospect of a recurrence by it of the offence;

(v) the Defendant has voluntarily incurred expenses of $11,000 arising out of the incident;

(vi) the Defendant has entirely co-operated with the investigating officials eg Workcover and the Environment Protection Authority; (vii) the Defendant's genuine contrition for the offence; (viii) the Defendant's co-operation with the Prosecutor in the efficient presentation of the case at trial; (ix) the Defendant's agreement to pay the Prosecutor's legal costs of $10,000 (x) the adverse publicity to its hitherto unblemished and enviable professional character and reputation suffered by the Defendant by a newspaper report of the incident.

The overall balancing and weighing of my conclusions in respect of the relevant factors stipulated in subsection (3) leads me to the ultimate conclusion that I am not satisfied that it is appropriate to either unconditionally or conditionally discharge the Defendant without proceeding to conviction pursuant to the Crimes (Sentencing Procedure) Act 1999 s 10(1).

In so concluding, I have especially given anxious consideration to the adverse legal and social consequences for the exemplary professional reputation of the Defendant (including that of its Co-Directors Mr and Mrs Pullen) of convicting the Defendant and imposing a penalty (see R v Ingrassia).

But for the elements of culpability on the part of the Defendant that I have earlier identified in the commission of the offence, I would most likely have exercised in favour of the Defendant the discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10(1).

It is solely the existence of that nature and degree of culpability on the part of the Defendant (being a culpability entirely unrelated to the obvious culpability of Mr Garafano in committing the offence, whose culpability cannot be attributed to the Defendant for the reasons I have earlier given: cf Cabonne Shire Council v Environment Protection Authority(2001) 115 LGERA 304) which ultimately has led to my conclusion that I should not exercise in the Defendant's favour the statutory discretion to conditionally or unconditionally discharge the Defendant without proceeding to conviction.

Accordingly, I am of the opinion that the facts of the present case both justify and require the recording of a conviction for the offence charged and the imposition of an appropriate penalty, and it is that question that I must now consider. E. APPROPRIATE PENALTY

I now return to the parties' competing submissions (which I have earlier referred to) on the question of what is the appropriate penalty to impose in this case upon conviction of the Defendant.

In this respect, the Pesticides Act, s 109(1) prescribes factors where relevant, to be taken into account and subsection (2) empowers the Court "to take into consideration other matters that it considers relevant". Such other matters clearly include the mitigating factors relied upon by the Defendant which I have earlier recited when considering the Defence submission for discharge pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10(1).

In respect of relevant factors stipulated in the Pesticides Act, s 109(1), I can state in summary fashion my findings having regard to the relevant facts as I have earlier summarised them and as they are more completely stated in the Statement of Agreed Facts (Exhibit 1).

No actual injury, damage or harm was caused by the commission of the offence. However, there was a potential for injury to be caused to guest residents who were present at the premises when the pesticidal spraying was being undertaken or who returned to the premises before the expiration of the three to four hours drying time.

The fact that 22 resident guests were taken to hospital, even if solely for precautionary health purposes, attests to the potential for human injury or harm caused by the commission of the offence.

Practical measures could have been taken to prevent etc any potential injury or harm by fully obeying the label instructions of ensuring that no person remained on the premises while the spraying activity was undertaken and no person was allowed to re-enter the premises until the drying period of three to four hours had expired.

Potential injury or harm to humans who remained at the premises during the spraying activity was reasonably foreseeable.

The Defendant, via its standing instructions to Mr Garafano and in reasonable reliance that he would obey those standing instructions, had not foreseen the occasioning of potential harm. However, it was reasonably foreseeable that if the instructions were ignored, as happened in the present case, harm was likely to be caused.

The Defendant had control over the causes that gave rise to the offence to the extent that its standing procedures did not fully comply with the relevant label instructions for the pesticide Dursban. However, to the extent that the offence was committed by Mr Garafano's ignoring of the Defendant's standing instructions the Defendant's control over those causes was no greater than the control that an employer exercises over the work of an employee. In the present case, the Defendant reasonably relied upon its employee to behave responsibly and competently (when clearly he did not for reasons that were never explained).

It is agreed that this factor is not relevant in the present case where the Defendant is liable vicariously for the acts of its employee Mr Garafano.

The Defendant is a small family owned business employing two full time staff and 10 part-time staff.

It is agreed that this factor is not relevant.

I have already noted that s 109(2) includes the relevant mitigating factors that I have earlier mentioned.

Additionally, subsection (2) attracts the application of other established sentencing principles - eg (i) the principle of even-handedness of sentencing for the same or similar offences; and (ii) the principles of general and specific deterrence.

In respect of the principle of "even handedness", I have been referred to four unreported decisions of this Court involving charges of an offence against the Pesticides Act 1978, s 33(1) which was the legislative antecedent to the Pesticides Act 1999, s 15(1) (which came into force on 1 July 2000 and repealed the Pesticides Act 1978).

The maximum penalty prescribed for an offence against s 33(1) of the earlier Act was $44,000 for an offence committed by a corporation and $22,000 for an offence committed by an individual. The penalties imposed in those cases ranged from $1,500 to $4,000 for offences committed by an individual and from $2,000 to $16,000 for offences committed by a corporation.

The maximum penalties prescribed for an offence against the Pesticides Act, s 15(1) are nearly 300 per cent higher than the maximum penalties prescribed for the same or similar offence against the earlier Pesticides Act.

It is to be noted that the present charge is the first laid under the current Pesticides Act.

In this respect, the Prosecutor invokes the sentencing principle of general deterrence "for the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed" per Brennan J in Walden v Hensler (1987) 163 CLR 561 at 570.

It may be accepted that now that the Defendant carries out its pest control activities by the services of licensed professional pest controllers, it, itself, is not in need of education in the proscriptions of the Pesticides Act 1999. However, community education in the law's proscriptions and requirements will be advanced by the imposition of an appropriate penalty in the present case.

In all of the circumstances, I consider that but for the influence of the mitigating factors (which I have valued globally as justifying a 50 per cent sentence discount), the offence in the present case warranted the imposition of a penalty of $24,000, reflecting 20 per cent of the maximum penalty. However, by factoring in the 50 per cent sentence discount, the resultant penalty is $12,000 representing 10 percent of the maximum penalty. Such a result, in my judgment, is a just and appropriate penalty in the present case.

Accordingly, I propose to convict the Defendant and to impose a penalty of $12,000.

The Defendant has already agreed to pay the Prosecutor's reasonable legal costs. F. ORDERS

For all the foregoing reasons, I make the following orders -

The Defendant is convicted of the offence charged.

A penalty of $12,000 is imposed in respect of that conviction.

The Defendant shall pay the Prosecutor's reasonable legal costs in the sum agreed of $10,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2001) 115 LGERA 304

At a glance

Court

Decision date

Before

Source

Judgment (150 paragraphs)

Parties

Cases Cited (5)

Cited By (8)